SMITHWICK V. HALL & UPSON CO.
21 A. 924 (1890)
NATURE OF THE CASE: Hall (D), employer, challenged a default which found in favor of
Smithwick (P), employee, in a personal injury action caused by the D's negligence. The issue
for the court was whether P was contributory negligence and only entitled to nominal damages.
FACTS: P worked for D and at the time of the accident was engaged in helping to store ice
for D in a brick building. The foreman of D stationed P on the platform just west of the
door and inside the railing, and showed him what his duties were there, and told him 'not to
go upon the east end of the platform east of the slide and door, as it was not safe to stand
there.' P was not told why it was not safe. P presupposed it was the narrowness and unrailed
condition of the platform and the liability by inadvertence to misstep or fall or slip off,
the latter being aggravated by the liability of the platform to become slippery from broken
ice. These dangers were all manifest. The peril resulting from the accident which happened
to the building was not in contemplation. P disregarded the orders and went over to the east
end of the platform and worked there. P was specifically told by another worker that it was
not safe, and to stand on the other side,' but P ignored that warning. The brick wall of the
building above the platform, gave way, the brick falling upon the platform and thence to the
ground. P was struck by portions of the descending mass and fell to the earth. P had no
knowledge that the wall would be likely to fall or was in any way unsafe, and it is found
that 'no fault or negligence can be imputed to him in this regard. It was also found that
the spot where P stood could not have been considered more dangerous than the place where he
was directed to stand, though in fact most of the brick fell upon the side where he stood,
and the result demonstrated therefore that the other side would have been safer in the event
which occurred.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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